Why consider a New York prenup
New York has specific divorce and family laws. However, the courts in the state will tend to rely on the agreements made by spouses in a prenup. So why should you consider a NY prenup?
- You want to prevent the court from managing your finances. If you and your fiancé agree to how property and money will be distributed in the event of a divorce, the court will defer to your agreement. If there is no agreement to defer to, then the court will equitably divide the assets.
- This is not your first marriage. If you want to protect your assets and pass down money or property to children or grandchildren from previous marriages, a prenuptial agreement helps protect those assets from passing to your spouse in the event of a divorce.
- You want to protect yourself from (potentially) paying more money in the event of a split. ‘Equitable distribution’ in New York state does not mean that property or money is split equally between the parties. You may not receive what you would consider to be fair after the court equitably divides your assets. A prenup can allow you decide.
How to create a valid New York Prenup
- Written contract
- The terms must be lawful
- Your prenup must be signed by both parties, notarized, and acknowledged in the same form as is required to file a deed in New York. Remember, notarization is not enough—it must be acknowledged in a particular way or it is not valid.
- Signed voluntarily (without being under duress, intimidation, deceit, etc.)
- Full disclosure of finances. That includes, but is not limited to, any and all bank accounts, houses, cars, crypto currency and NFTs, and all other forms and sources of income.
- While there’s no concrete requirement to do this, you and your prospective spouse should sign the agreement in a reasonable amount of time before your wedding. This is to allow for enough time to make sure each party is entering the agreement voluntarily and with complete understanding and transparency. This also allows each of you enough time to obtain legal advice if you want it.
- No incentives to commit illegal acts
- No incentives for divorce
- No unfair, unjust, or deceptive terms
- Must not include clauses that are not financial in nature, like demanding that one spouse loses weight or changes their appearance
- Proceed with Caution… Child custody or child support can be included in a NY prenup, but you must proceed with caution. See the section titled “Child Support” below.
A Few Things You Can Include in a New York Prenup
A New York prenup can specify what property should remain the separate property of each party.
Spousal Maintenance / Property
This is support of one spouse, by the other spouse in the event of divorce. Your New York prenuptial agreement can specify whether you and your future spouse will choose to follow the spousal maintenance laws of New York, or whether you will choose to modify support or waive it altogether.
A New York prenup can specify what property should be considered marital property. Marital property can include assets that were otherwise premarital, as well as assets acquired after marriage.
A prenup can cover rights to property acquired before, during, or after marriage. The agreement may include assets, debt, inheritance, gifts, real estate, income, earnings, or future interests in investments or businesses. A prenup can specify what will happen to these assets and income while you’re married, and what will happen in the event of separation or divorce.
Financial Disclosure in New York
When it comes to a New York prenuptial agreement, both fiances must disclose all of their income, assets and debt. This is done via financial disclosure on a financial schedule, which is a snapshot of all of your income, assets, debt and future inheritance and attached to the end of your prenup. Complete disclosure of al finances is imperative in New York prenuptial agreements.
Choice of Law
You are free to choose whichever state you would like for your HelloPrenup prenup, but it is common practice and commonly accepted that you should choose the state in which you plan to reside as a married couple. Your choice of state (this is what we call “choice of law”) determines which state will determine enforcement of your prenup in the event of a divorce.
New York Child Support
In most states, including child support or custody provisions in your prenup is a big no-no. However, New York actually allows them to an extent. You and your partner can create an entire detailed breakdown of custody arrangements and calculations of child support in your prenup, so long as the child is already born. You cannot contract to terms for a child who is not yet born.
At the end of the day, the court has total authority and discretion in deciding custody and support arrangements. That is because the best interest of the child reigns supreme over all decisions relating to children—and the court is the one to make that determination.
New York Alimony
If you and your partner are financially independent, perhaps you both want to take spousal support off the table. If so, you’re in luck! Your prenup allows you to contractually limit or eliminate spousal support all together. There are, of course, a few caveats.
A spousal support provision needs to be “fair and reasonable at the time of the making of the agreement” and not “unconscionable at the time of entry of final judgment”. That means at the time you enter into your prenup, you and your partner need to think about what your relationship will look like down the road to ensure the agreement doesn’t become unconscionable. For example, you may both be working at your dream jobs right now but maybe one of you will end up electing to stay home with the kiddos and thereby foregoing that earlier financial independence. These are scenarios you definitely want to consider now! Make sure you consult a family law attorney to discuss these important terms in your agreement.
Statutes & Terms
Official term for jointly owned property
In New York, all marital property is divided equitably (but not always equally). Each divorce is a case by case basis that can only be determined with the help of a practiced attorney or lawyer in the state of New York.
In general, only marital property is divvied up in a divorce. The way that the property and possessions will be divided between the splitting parties will be determined based on financial and lifestyle circumstances.
“d. The term separate property shall mean: (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.” NY Dom. Rel. 236
Legal term for independently owned property
Generally speaking, separate property is defined as any property that is acquired by one party prior to the marriage. It is not considered marital property, as it is not jointly owned by both parties of the marriage. This is true unless there is a prenuptial agreement in place that defines the rights and ownership to any properties within the marriage.
Spousal Maintenance Upon Divorce
Here is the fine print from the New York statute itself (NY DOM Law 236)
“Alimony, temporary and permanent. 1. Alimony. In any action or proceeding brought (1) during the lifetime of both parties to the marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, the court may direct either spouse to provide suitably for the support of the other as, in the court’s discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties. Such direction may require the payment of a sum or sums of money either directly to either spouse or to third persons for real and personal property and services furnished to either spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes, repairs or other carrying charges on premises occupied by either spouse, or for both payments to either spouse and to such third persons. Such direction shall be effective as of the date of the application therefor, and any retroactive amount of alimony due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary alimony which has been paid. Such direction may be made in the final judgment in such action or proceeding, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and the final judgment. Such direction may be made notwithstanding that the parties continue to reside in the same abode and notwithstanding that the court refuses to grant the relief requested by either spouse (1) by reason of a finding by the court that a divorce, annulment or judgment declaring the marriage a nullity had previously been granted to either spouse in an action in which jurisdiction over the person of the other spouse was not obtained, or (2) by reason of the misconduct of the other spouse, unless such NY DOM Law 236 Special controlling provisions; prior actions or proceedings; new actions or proceedings. (Laws of New York (2021 Edition)) misconduct would itself constitute grounds for separation or divorce, or (3) by reason of a failure of proof of the grounds of either spouse’s action or counterclaim. Any order or judgment made as in this section provided may combine in one lump sum any amount payable to either spouse under this section with any amount payable to either spouse under section two hundred forty of this chapter. Upon the application of either spouse, upon such notice to the other party and given in such manner as the court shall direct, the court may annul or modify any such direction, whether made by order or by final judgment, or in case no such direction shall have been made in the final judgment may, with respect to any judgment of annulment or declaring the nullity of a void marriage rendered on or after September first, nineteen hundred forty or any judgment of separation or divorce whenever rendered, amend the judgment by inserting such direction. Subject to the provisions of section two hundred forty-four of this chapter, no such modification or annulment shall reduce or annul arrears accrued prior to the making of such application unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. Such modification may increase such support nunc pro tunc based on newly discovered evidence.”
Asset / Debt statute
New York is an Equitable Distribution State, meaning that the court will divide the assets and debts of the two parties in a fair and “equitable” manner, based on many factors dictated by the state.
Pangea Capital Mgmt., LLC v. Lakian, 906 F.3d 1 (2nd Cir. 2018)
…on a view of marriage as an “economic partnership.” McDermott v. McDermott, 119 A.D.2d 370, 507 N.Y.S.2d 390,396 (2d Dep’t 1986). Under that system, all property acquired by either or both spouses during the marriage, “regardless of the form in which title is held,” is deemed “marital property.” N.Y. Dom. Rel. Law § 236(B)(1)(c). Upon dissolution of the marriage, marital property is equitably distributed by a court, see id. § 236(B)(5)(a)(providing that, in a divorce action, “[e]xcept where the parties have provided in an agreement for the disposition of their property …
“Action for divorce:” Official term used in referring to divorce
Action for divorce is New York’s legal term for a divorce. An action for divorce occurs when two people, who have been legally married, begin the court process to have the marriage ended.
New York Divorce Grounds
New York honors “fault” and “no fault” grounds for divorce as long as the parties have been separated for at least one year or if the marriage is unrecoverable for at least six months. Once either of these time lapses are accounted for, the parties can enter an action for divorce.
The information on this page was last updated in April, 2023. Hello Prenup provides a platform for self-help. The information provided by Hello Prenup along with the content on our website related to legal matters (“Legal Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither Hello Prenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.